R v Mabuza ((302/09)) [2010] SZHC 86 (07 June 2010);

IN THE HIGH COURT OF SWAZILAND

In the matter between:                  Crim. Trial No.302/09

REX

VERSUS

BONGANI MNDENI MABUZA

 

Date of hearing and judgment 7June, 2010

 

Mr. Attorney M. Nxumalo for the Crown

Mr. Attorney M. Fakudze for the Accused

EX TEMPOREJUDGMENT

MASUKU J.

[1]    The Accused person stands before me indicted on a single count of murder.  When the charge sheet was read to him he pleaded guilty to the lesser offence of culpable homicide.  This plea was duly accepted by the Crown and having being confirmed by the Accused counsel, Mr. Fakudze.

 

[2]    Having recorded the plea of guilty to culpable homicide, I put certain question to the Accused in order to ascertain whether his plea was unequivocal.   In particular, the Accused admitted all the elements of the offence of culpable homicide.

 

[3]    Thereafter, the statement of agreed facts was read into the record. The Accused indicated unequivocally that he understood the same and that the said statement of agreed facts accurately reflects the events that took place leading up to the charges he is presently facing.

 

[4]    It was also agreed that the post mortem report be handed up as part of the Crown’s evidence against the Accused and it was duly handed in and marked exhibit “A”.

[5]    Having regard to the Accused plea of guilty to the crime of culpable homicide and also having regard to the Accused’s admission of all the constituent ingredients of the offence of culpable homicide, coupled with his acceptance of the statement of agreed facts and also having regard to the acceptance of the autopsy report or the postmortem report,  I am of the view that the Accused is and I find him guilty of the offence of culpable homicide to which he pleaded guilty.  

 

JUDGMENT ON SENTENCE

 

[6]    The accused person has, upon his own plea of guilty, been convicted of the offence of culpable homicide.  The task of the Court at this juncture, is to fashion an individualised sentence that as far as possible brings to equilibrium the seriousness of the offence; the interests of society and of course the accused’s own interests and personal circumstances.

 

[7]    In the recent judgment of Chicco Manyanya Iddi and Two Others v Rex Crim. Appeals 03/10; 09/10 and 10/10, Moore J.A. set out the responsibility of the sentencing Court at page 27-28 [para 45-46], as follows:-

 

                “A sentencer must consider:

1. The penalties and other forms of treatment prescribed by the legislature
2. The circumstances of the case
3. The circumstances of the offender, and
4. The interests of the society at large.

 

Under the above broad headings, the court must also consider such factors inter alia as:

 

1. the evidence in mitigation
2. the effect of the offence upon the victim and the community.
3. whether the offender had made reparation or has compensated the victim
4. the effect which the sentence may have upon continuing relationships between the offender and the victim e.g. in cases of domestic violence
5. the prevalence of the offence at the time of its commission
6. its potential for inflicting harm upon the innocent and the vulnerable
7. its potential for undermining the integrity of the society and its public officials.”

 

 

I will, from the array of factors that can be taken into consideration, as stated above, put those that are applicable to the instant case into the equation.

 

[8]    I will commence by a consideration of factors that are in the accused’s favour.  In this regard, I must specifically point out that the accused upon advice, did not tender any evidence in mitigation of sentence.  Counsel was content to make oral submissions on issues he has been instructed by the accused on the one hand and those which appear from the record and particularly, the statement of agreed facts, on the other.

 

[9]    First, I will take into account that the accused is a first offender, who has hitherto had no recorded brush with the law.   He is 25 years old now and was employed, earning E1,500.00 per month.  He was a bread winner to members of his family and has one young child who is one year old.  Second, the accused pleaded guilty, albeit to the lesser offence of culpable homicide.  This can, in the circumstances, be properly considered as a token of remorse or contrition on his part for the wrong he has caused the deceased’s family and society in general.  Furthermore, this plea has served to spare the witnesses the need to attend Court to tender evidence, thereby consuming time and dislocating their schedules, let alone saving them from the need to testify about the painful events leading up to, including the deceased’s eventual death.

 

[10]  I will also consider that both the accused and the deceased had quarreled on a number of times before the latter was stabbed fatally.  In fact, it appears that it is the deceased who accused the accused of theft, an allegation to which the accused took exception.  It is also on record that the accused and the deceased had been imbibing alcohol, which may be an answer to their intermittent fights and quarrels.  It is also evident that the accused eventually co-operated with the police and admitted his complicity in the commission of the offence, culminating in his pointing out the weapon by which the deceased’s death was brought about.  I will also consider that there was only one stab wound inflicted by him on the deceased according to the autopsy report.

 

[11]  Having said the above, there is no denying that the offence of culpable homicide is very serious.  This is so because it involves that taking away of another person’s life.  The law and society, it is obvious, place a very high premium on the sanctity of life.  As a result, those who are adjudged to have killed other human beings will normally face varying terms of imprisonment, depending on the seriousness of the case and the attendant circumstances.

 

[12]  Another factor that I need to take into account in this wise is that far too many lives are lost in this country as a result of the abuse of knives and alcohol.  These have become the terrible twins that have bedeviled our society, claiming many an innocent life.  Record of cases in which violence, particularly brought by the use of knives are far too many to document.  This is an indication that this Court must step up its sentencing regime, perchance our society may the exorcised of this social evil which if not curbed, may, in view of the frightening statistics, bring a legitimate fear of extinction, considering our small population.  It must be noted that the injury appears to have been unleashed with a great deal of force for it to cause such destruction to the mentioned members of the deceased’s body.

 

[13]  Talking for the majority of the Court in the Republic of Botswana, Tebbutt J.P. had the following to say in Kealotswe v The State CLCLB-000016-06 at page 6:-

 

“An increasing number of cases have been coming before this court in which drunken brawls have resulted in the deaths of innocent victims.  Unrestrained debauchery caused by an over-consumption of alcohol and an apparent inability by those who overindulge in this manner to cope with the effects of alcohol, in common parlance to hold their liquor-resulting in their losing control of their tempers, has become a far too frequent feature of murder in courts of this country.  The resort to violence by persons affected in this manner requires to be curbed and the manner in which the courts can assist in doing so is by passing sentences of suitable severity.  Persons who get drunk and then assault their fellow citizens, often resulting in the deaths of the latter, must know that they can expect scant mercy from the courts for their deeds.”

 

These sentiments need to be repeated time and again for they are a true and accurate reflection of what happens in many cases this country as well.

 

[14]  In the Supreme Court case of Musa Kenneth Nzima v Rex Criminal Appeal No.21/07, at page 5, Tebbutt J.A. again had occasion to express himself on this subject in a rather restrained tone and said:-

 

“One cannot, however, fail to realize that human nature being what it is, people will continue to over indulge in alcohol no matter what sentences the courts may pass and that again, human tempers, particularly fired by intoxication; will continue to flare and find expression in violence. The courts cannot blind themselves to these frailties and must, in appropriate cases temper (sic) the severity of the sentences they would otherwise impose in order to take account of them.  Each case must be decided on its own facts and therefore a bench-mark of a certain number of years imprisonment, designed as an indication of the court’s aim to ensure severity in sentences in cases where knives are used and lives are in consequence lost, without individualizing the facts of the case and the personal circumstances of the offender, is not an appropriate approach to sentencing.”

 

 

[15]  I will heed the applicable sentiments expressed in both judgments in the instant case.  I do, however hope that you have, during your time in the penitentiary, had occasion to reflect soberly and in retrospect, over your actions.  I also take the view that the fact that you took away a life of a person who is well-known to you and whom from indications, is a close relative, from your very own community, will to some extent, serve as an Albatross to you.

 

[16]  I must, however, decry the ever-increasing incidents of people in this country, particularly young men, who carry knives needlessly on their persons.  This becomes more serious when they visit places of amusement where alcohol is also on offer.  The urge to use knives at the slightest provocation and for the flimsiest of reasons becomes irrepressible.  The law enforcement officers must step up their resolve in curbing this menace by holding to account those found possessing dangerous weapons of which knives form part so that people may know that it is an offence to be found carrying a dangerous weapon on your person in circumstances where there is no justification.

 

[17]  Having regard to the entire circumstance of this case, I am of the considered opinion that the following sentence is condign:-

 

You are hereby sentenced to seven (7) years’ imprisonment, three (3) of which are hereby suspended for three years on condition that you are not during the period of suspension convicted for a crime in which violence to the person of another is an element and a custodial sentence without the option of a fine is imposed therefor.

 

The effective portion of the sentence is backdated to 26 July, 2009, when you were arrested and taken into police custody.

 

DELIVERED IN OPEN COURT IN MBABANE ON THIS THE 7^TH DAY OF JUNE, 2010.

 

 

_____________________________

T.S. MASUKU

JUSTICE OF THE HIGH COURT

 

 

        Directorate of Public Prosecutions for the Crown

        Messrs. Fakudze Attorneys for the Defence